EHDH Estate Planning

Can Family Members Contest a Will?

Estate planning documents, like wills and trusts, are enforceable legal documents, but when the grantor who created them passes, they can’t speak for themselves. When a loved one dies is often when the family first learns what the estate plans contain. That is a terrible time for everyone. It can lead to people contesting a will. However, not everyone can contest a will, explains the article “Challenges to wills and trusts” from The Record Courier.

A person must have what is called “standing,” or the legal right to challenge an estate planning document. A person who receives property from the decedent, and was designated in their will as a beneficiary, may file a written opposition to the probate of the will at any time before the hearing of the petition for probate. An “interested person” may also challenge the will, including an heir, child, spouse, creditor, settlor, beneficiary, or any person who has a legal property right in or a claim against the estate of the decedent.

Wills and trusts can be challenged by making a claim that the person lacked mental capacity to make the document. If they were sick or so impaired that they did not know what they were signing, or they did not fully understand the contents of the documents, they may be considered incapacitated, and the will or trust may be successfully challenged.

Fraud is also used as a reason to challenge a will or trust. Fraud occurs when the person signs a document that didn’t express their wishes, or if they were fooled into signing a document and were deceived as to what the document was. Fraud is also when the document is destroyed by someone other than the decedent once it has been created, or if someone other than the creator adds pages to the document or forges the person’s signature.

Alleging undue influence is another reason to challenge a will. This is considered to have occurred if one person overpowers the free will of the document creator, so the document creator does what the other person wants, instead of what the document creator wants. Putting a gun to the head of a person to demand that they sign a will is a dramatic example. Coercion, threats to other family members and threats of physical harm to the person are more common occurrences.

It is also possible for the personal representative or trustee’s administration of a will or trust to be challenged. If the personal representative or trustee fails to follow the instructions in the will or the trust, or does not report their actions as required, the court may invalidate some of the actions. In extreme cases, a personal representative or a trustee can be removed from their position by the court.

An estate plan created by an experienced estate planning lawyer should be prepared with an eye to the family situation. If there are individuals who are likely to challenge the will, a “no-contest” clause may be necessary. Open and candid conversations with family members about the estate plan may head off any surprises that could lead to the estate plan being challenged.

One last note: just because a family member is dissatisfied with their inheritance does not give them the right to bring a frivolous claim, and the court may not look kindly on such a case.

Reference: The Record-Courier (May 16, 2021) “Challenges to wills and trusts”

How Do I Disinherit My Child?

Disinheriting a child or any person trying to gain access to your assets after you have died requires skilled estate planning. The things that can be done before you die to protect your estate are the subjects of a recent article “Disinheriting a child” from Westfair Online. It should be noted that if you anticipate a challenge to your will, or if you suspect claims will emerge after you pass, it will be wise to prepare your estate and family members for the legal, financial and emotional aspects of an estate battle.

Here are some of the steps to consider.

Avoiding probate. The probate estate includes assets that are controlled by your Last Will and Testament on the day you die. It does not include assets where there are named beneficiaries. Such assets pass directly to beneficiaries.

Before a will can be executed, it must go through probate. Part of the probate process is the notification of any individuals who may be entitled to receive assets. If you pass away without a will, the estate still needs to be probated and those individuals must still be provided with a notice of your passing and the distribution of your assets. If you had intended to disinherit someone and did not take the necessary steps, it is as if you have issued an invitation to them.

Using a revocable trust. Trusts are used to remove assets from probate estates. A revocable trust is a trust that allows you to maintain complete control over the assets in the trust, while you are living. When you die, the trust does not go through probate and no one needs to be notified of the trust’s existence or its terms, if you so specify and state law permits. Your wishes and assets may remain private. This is especially useful, if you want to disinherit someone.

The revocable trust is not immune from contest, but it makes the challenging more difficult.

Changing titles to joint ownership and naming beneficiaries. Changing your bank, investment and real estate property ownership to joint ownership is a way to avoid probate and have assets pass directly to your intended beneficiaries. However, there are complications to this strategy. If the person you add to an account has money problems, your assets are now available to their creditors. If the person on the account goes through a divorce, your assets are legally available to their spouse. And if the joint owner should die before you, any protection you may have obtained is gone. A trust may be a better solution.

Review your retirement plans and any other assets that allow you to name a beneficiary to ensure that the person who will receive these assets is still the person you want.

What about a no-contest clause? It seems like a simple solution—by including a no-contest clause, often referred to as an “in terrorem” clause, anyone who seeks to contest the will immediately forfeits any distribution to that person, if they are not successful in the will contest. However, what if they are successful in the will contest?

Talk with an experienced estate planning attorney about these and other strategies to defuse a disinherited person’s potential claims. Disinheriting a child sparks many estate battles, so preparations need to be made to protect the family and the estate.

Reference: Westfair Online (Jan. 26, 2021) “Disinheriting a child”

Can I Disinherit Anyone I Want?

If there’s someone you believe is more deserving or needs more of your help, that may mean someone else in your life may receive little or nothing from you when you die. However, be careful—disinheriting an heir is not as simple as leaving them out of your will, explains the article “How to Disinherit an Heir” from smart asset.

Disinheriting an heir means you’ve prevented them from receiving a portion of your estate, when you die. A local estate planning lawyer will know what your state requires, and every state’s laws are different.

One way is by leaving the person out completely. However, this could also leave your will up for interpretation, as there may be questions raised about your intent. A challenge could be raised that you didn’t mean to leave them out—and that could create stress, expenses and family fights.

You may also disinherit a person, by stating in your will that you do not wish to leave anything to this specific person. You might even provide information about why you are doing this, so your intent is clear. There could still be challenges, even with your providing reasons for cutting the person out of your will.

Disinheriting someone can be a tricky thing to do. It requires professional help. Working with an experienced estate planning attorney who has experience in will contests, may be your best choice for an estate planning attorney.

There are instances where relatives known and unknown to you are entitled to make a claim on your estate. An experienced estate planning attorney may suggest a search for relatives to ensure that no surprises come out of the woodwork, after your passing.

There are some relatives who cannot be disinherited, even in a legally binding last will and testament. In many states, you may not disinherit your spouse or children. Most states protect spouses from being disinherited, and in some states, children are legally entitled to a certain amount of your property. However, in most states, you may disinherit parents, if they outlive you.

There are many reasons you may want to disinherit someone. You may have been estranged from a child or a cousin for many years, or you may believe they have enough financial resources and want someone else to receive an inheritance from you.

Many high-profile individuals have declared that their children will not receive an inheritance, preferring to give their assets to charitable foundations or organizations working for causes they support.

Whatever your reasons for disinheriting someone, make sure you go about it with professional help to ensure that your wishes are followed after you die.

Reference: smart asset (June 1, 2020) “How to Disinherit an Heir”

Alleged Promises by Mogul to Care for Child of Mistress at Center of Estate Dispute

The executor of John R. Jakobson’s estate is relying on the “dead man’s” statute, a law that prohibits a witness who has an interest in a case from testifying about communications with the deceased person. The executor, the son of millionaire John R. Jakobson, doesn’t want Marie Squerciati, the daughter of his father’s former mistress, talking.

Wealth Advisor’s recent article, “Wall Street mogul John R. Jakobson promised mistress that their love child Marina Squerciati would get a ‘big surprise’ in his will--then left Chicago PD star Nothing,” reports that documents filed with the Manhattan Surrogate Court state vague terms the man who died aged 86 in April 2017—and who reportedly had many affairs—allegedly used when stating plans for his will.

'I’m a gentleman and you may read into that only good,” the senior Jakobson purportedly told his mistress in 1981 about their alleged daughter, now 37, who went on to star as Officer Kim Burgess on Chicago PD.

The mogul's widow, Joan Jakobson, said she didn’t know about Mariana, who kept her family life a secret, until she found out she was left out of the will. Jakobson's three living children from his marriages were included in the will. However, the family of the man, who at 25 became one of the youngest people to buy a seat on the New York Stock Exchange in 1955, has refused to acknowledge her as one of his children.

Marina is the allegedly product of his affair with her mother Marie Squerciati, who was a television writer in the 1970s and 80s and reporter for the Village Voice, as well as The New York Times. The affair was said to have lasted for a year and led to Marina's birth in 1981. For her whole life, Marina kept her father's identity a secret, as he allegedly paid her mother $1,200 a month for more than 20 years. That monthly check was used for Marina's nanny and for her apartment in New York City. Jakobson also reportedly paid for Marina's schooling including the $175,000 tuition for Dalton School, then $131,000 for her education at Northwestern University, where she graduated from in 2003 with a bachelor's degree in theater.

Even though Jakobson made oral promises that he'd provide a “substantial” trust for Marina in his will, it looks like he didn’t. When Marina got engaged, her mother allegedly asked Jakobson for a gift to which he allegedly reaffirmed that she “would receive money under his will.”

In her court filings, Marina contends that the price of her silence was “extraordinary” and that she missed out on the opportunity to build a relationship with her alleged father and was denied “any relationship whatsoever with her half-siblings.”

The Squerciatis contacted his estate last fall to ask if Marina was named a beneficiary, according to court papers.

The Jakobson’s attorneys say that Marina’s claims are not founded in any facts, and that even if she could prove that he was her father, she had had more than enough time during her life to have had him put his intentions in writing.

The Jakobson’s attorneys offered Marina a $50,000 settlement, but that was clearly not enough.

Reference: Wealth Advisor (October 14, 2019) “Wall Street mogul John R. Jakobson promised mistress that their love child Marina Squerciati would get a "big surprise" in his will--then left Chicago PD star Nothing”

How Does a “No-Contest” Provision Work?

Avoiding family fights because of inheritances can sometimes be avoided, by calm conversations long before the will is read. Sometimes, even that doesn’t help. When one family feels slighted, it can set off feuds and even fistfights.

Wealth Advisor’s recent article, “How to Protect Your Will From Legal Challenges,” explains that unfortunately, a similar scene can also play out in real life,  if you fail to make proper provisions.

However, with some planning, you can avoid these kinds of disputes—or at least minimize the risk of your will being contested by your loved ones.

Before you (and your spouse, if married) consider your will and your comprehensive estate plan, discuss estate matters with close family members who likely will be impacted. Give them a rough outline of your plans for the disposition of your assets and other important topics. These types of conversations can eliminate potential problems and better prepare your heirs. It will also avoid a dramatic “shocker,” like those seen on the big and small screen.

While there are no guarantees, review these ways to bulletproof your will from a legal challenge:

A no-contest clause. This is also known as an “in terrorem clause.” It says that if anyone named in your will challenges it, he or she is excluded from your estate.

Witnesses. Use witnesses who know you well, like close friends or business associates because they can state convincingly that you were of sound mind when you made out the will.  You should also select witnesses in good health, preferably younger than you are and easily located. You can also add extra witnesses for more protection.

A physician’s note. A doctor’s note about your health status is recommended, if you’re extremely ill or elderly. This can declare that you have the requisite mental capacity to make estate planning decisions, which can be useful in addressing legal challenges. Get the physician’s note near to the time that the will is signed.

You could also want to videotape yourself reading your will. Speak with your estate planning attorney to learn how your state laws govern this. It could turn out to be another layer of protection for loved ones. However, if it shows signs of incompetency or undue influence, it could backfire.

Reference: Wealth Advisor (August 12, 2019) “How to Protect Your Will From Legal Challenges”

How Do I Contest a Will?

First, know that this happens quite a bit. A Forbes article, “5 Things You Should Know About Contesting A Will” says that disgruntled heirs frequently want revenge and their day in court. If you’re one of them, here is what you need to know:

1. Litigation is expensive. Many people will ask if an attorney will take the case on a contingency fee basis—typically a third of what you receive, and he or she only gets paid if you do. Most probate attorney won’t take a will contest on a contingency fee, because there’s a risk they won’t get paid. If you decide to go this route, be certain to have an experienced estate planning attorney.
2. Have lots of antacids on hand. You’re gonna need them. It’s a rough journey, one that can be full of lies, misrepresentations, and accusations. There may also be a counter lawsuit against you. You’ll probably be interviewed in a deposition, where the opposing lawyer will ask you questions about the case. You may be portrayed as greedy, and you might have to testify in court.
3. Snap decisions are required. Once you hire your attorney, he or she will work with you to develop a strategy for the case. Your attorney may recommend that you file suit immediately and be the first one into the courthouse. On the other hand, your counsel may think it best to send a letter to the attorney representing the person you’re suing with a request for information. Depending the response, you may decide to file suit. In most cases, you’ll have a limited time to contest the will. If you don’t do so within that time period, you can’t bring a lawsuit. Talk to an experienced attorney soon after the death.
4. You’ll probably reach a settlement. Once the litigation has begun, and the attorneys have had time to exchange information and do some fact finding (in a process known as discovery), your attorney will talk to you about the strengths and weaknesses of your case. It may be appropriate at that time for one side to present the other with a settlement offer. This would end the litigation without the time and expense of a trial. This may be a wise option, if you’re tired of fighting and are willing to consider a settlement. Your attorney may also point out weaknesses in your case and advise you to be happy with getting a settlement, so you can move on with your life. You should approach the settlement like a business decision, and try to keep emotions out of it.
5. It’s emotional. You may get some closure from the legal process and perhaps some money, but the emotional scars won’t be healed by the litigation. You don’t get your loved one back, and you can’t mend the relationships.

Reference: Forbes (May 21, 2018) “5 Things You Should Know About Contesting A Will”

Can I Do Anything, if My Own Dad Disinherited Me?

It does not seem fair that a father would change his will to disinherit a son. However, unfortunately that does happen. If the will has been revised properly, following the laws of the state, there is not a lot that a disinherited child can do. That’s the unpleasant reality, says nj.com in the recent article “My step-mother changed my dad's will. I got nothing. What can I do?”

In the U.S., for the most part, a person has the right to leave his or her property and assets to whomever he or she chooses. It’s called "freedom of disposition." However, in the United States, some classes of beneficiaries have the right to take 'against' the will."

A surviving spouse can claim an elective share of an estate, if he or she is disinherited. The rules for granting an elective share are complicated. However, the thought behind the law is that a spouse has the obligation to provide for the support of his or her spouse and by disinheriting the spouse, they’re violating this duty.

In the U.S., adult children typically don’t have any right to inherit from a parent.

To overcome this, a child would need to prove that his father didn’t act of his own free will. The child would need to show that his stepmother “unduly influenced” his father to change his prior will and leave everything to her. If successful, the father’s property would be distributed according to his last valid will, or if there is no will, according to the intestacy statute.

Proving undue influence can be quite difficult to do. The child would have to show that the step-mother was in what is known as a "confidential" relationship with the father and that there are suspicious circumstances. If so proved, the burden of proof shifts to the step-mother to show that she didn’t unduly influence the father.

If the father was diagnosed with dementia, had stopped working and can be proven to have diminished capacity, there might be the ability to demonstrate undue influence. However, if the father is still working and functioning at a normal level, it would be very hard to prove a lack of free will. This kind of a claim is very technical, and every case is determined on the specific facts.

Anyone facing this type of situation should speak with an experienced estate planning attorney, to see if they have any chance of success with pursuing a claim.

Reference: nj.com (February 8, 2019) “My step-mother changed my dad's will. I got nothing. What can I do?”

I’m Too Young to Need a Will

Most of us live for a long time, before we come in contact with the death of parents or friends. However, others are unfortunately witness to the passing of people, for one reason or another, who die far too early. Death is a painful topic, and that’s why many people, especially young adults, don’t like to think about dying. That includes thinking about having a will.

The Lebanon Democrat’s recent article, “End-of-life planning beneficial no matter your age,” reports that two out of every five people older than 45 don’t have a prepared will—and they haven’t even thought about estate planning. Even a little bit of simple planning can help make life for your family much easier, when you die.

There will be less stress and fewer fights, and it can help survivors know what should be done and how to do it. However, if you die without a will, your property may be awarded to others, based on the decisions of a judge and an appointed administrator—who could be complete strangers to you.

Get all of your wishes down in writing so your family understands and can follow your instructions. This will make things much easier for your surviving family and/or beneficiaries. If you have a senior in your family, make certain that he or she has a will, especially while they are still legally competent.

Talk to an experienced estate planning attorney. You should arrive with some understanding of these basics:

• Name the individual, known as the executor, you want to administer your affairs.
• Decide who should take control of your possessions. Mapping out who gets what, can save a lot of time and anguish down the road.
• As you make out your will, also have your attorney prepare a living will—a legal document that states what actions should be taken for your health, if you’re no longer able to make decisions for yourself, due to illness or incapacity.
• Keep your original will in a safe place and be sure that others know where to find it, in case of an emergency.

Finally, be sure that you update your will as time goes by. Events such as the death of a spouse or other loved one, divorce, retirement, relocation or the addition of a family member may require changes to be made.

People think that seniors in failing health or people who have been struck by serious illnesses, are the ones who need to have a will. Having a will is just a part of adult life: making preparations for one of life’s eventualities, to protect the ones you love.

Reference: Lebanon Democrat (January 18, 2019) “End-of-life planning beneficial no matter your age”

Celebrities’ Larger Than Life Estate Snafus

In the article “Yes, even celebrities make estate planning mistakes,” the Reno Gazette Journal takes a close look at four big estate planning mistakes we should all avoid. These are such basic estate planning mistakes that you’d think no one would make them!

You don’t have a will. Your affairs should be properly handled, and your family should be protected, when you pass away. However, neither singers Aretha Franklin nor Amy Winehouse had a will. Franklin left behind four sons with some financial issues. Amy didn’t take the time to plan either. She didn’t say how she wanted her $6.7 million estate to be distributed. Without any written instructions, her estate went through probate and was distributed to her parents. The primary purposes of a will are to designate the guardians of minor children, an executor of your estate and which beneficiaries are to get what assets.

Not considering a trust. Who wants to be a celebrity when it comes to private matters? Remember that a will is a public document, and anyone can go to the courthouse and look it up. However, with a living trust, your wishes remain private. Learn from the saga of the late Whitney Houston, who died at age 48. First, her will named her daughter Bobbi Kristina Brown as sole beneficiary. However, then her daughter died three years later at age 22. Houston’s estate was then involved in a battle with the IRS over the valuation of recording royalties and was assessed a tax bill of $2.2 million. To top it all off, her ex-husband Bobby Brown, ironically may be the heir of the Houston estate.

A living trust can help your estate plan remain private and away from others. It names who is entitled to your assets and how they are to get them. A trust names trustees. It also may provide estate tax benefits. If you look at Whitney Houston’s situation, a living trust may have helped by providing guidance to daughter Bobbi, after her mother’s death.

Failing to update your estate plan. We all experience changes throughout our lives. This includes finances, health, family dynamics and relationships—any one of these can mean it’s time for an estate plan review with your attorney. Look at the late Michael Crichton, the author of Jurassic Park, who was diagnosed with throat cancer, when his sixth wife was pregnant. Crichton failed to update his estate plan to include his soon-to-arrive son. His wife sued to include the baby as an heir, and Crichton’s daughter from a prior marriage opposed. The judge ruled the baby could inherit. Crichton could have saved everyone a lot of stress, anguish and money, by simply updating his estate planning documents.

Failing to plan for disability before death. You should also think about planning for the possibility of being disabled and needing assistance in managing your affairs. Ask your estate planning attorney about powers of attorney and living wills to help protect you and your loved ones, in case of incapacity. For example, the final years of blues singer Etta James, known for “At Last” and “Tell Mama,” were full of court hearings. The legal battle was between her husband of 42 years and her son from a prior marriage. Etta signed power of attorney over to the son in 2008, but her husband claimed that she suffered from dementia and was incompetent. Her son wanted to restrict the amount of money Etta’s husband spent for her medical care. They settled, and the husband was named as conservator. However, he was limited to $350,000 for medical care for his wife. Etta James passed a short while later.

So you’re not famous and don’t have a room with gold records and Emmy statues? That doesn’t matter so much as you might think. Make your kids proud not because you are a global star, but because you took the time to meet with an estate planning attorney and protected your family. Now that’s cool.

Reference: Reno Gazette Journal (November 14, 2018) “Yes, even celebrities make estate planning mistakes”

Estate Battle Still Going Strong for Singer Glen Campbell’s Estate.

Five separate claims filed by Kimberly Campbell, the widow of Glen Campbell, are being challenged by Blaine H. Smith, a newly-appointed administrator in Davidson Probate Court. That’s not the only challenge for the iconic singer’s estate.

The Tennessean’s recent article, “Glen Campbell estate administrator disputes $1.3 Million in claims filed by widow,” reports that the items challenged, include funds spent to place Campbell in an assisted living facility in the months before his death in the summer of last year.

Smith was appointed in September by Probate Court Judge David Randy Kennedy as a special administrator to examine the five claims submitted by Kimberly Campbell, since the estate was opened in 2017. Smith says that several of her claims are defective. They include a $330,000 filing for medical expenses for Campbell, who died following a long battle with Alzheimer's disease. The largest single claim challenged was for $506,000. A $300,000 claim was also disputed. That claims seeks reimbursement to pay off a mortgage held on a California property, which has since been sold.

Smith also noted that one of the claims Campbell’s widow filed was for a $175,000 payment made from a joint checking account with her husband. The special administrator said that Kimberly may be eligible for partial reimbursement—not the entire amount.

With another claim, Smith's motion said that the filing looked to be inconsistent with a spreadsheet submitted to document and support the claim.

There are other objections for claims of unspecified items charged to a credit card "with no particularity."

In other recent actions in the Glen Campbell estate, a new probate attorney, David J. Callahan of Nashville, entered an appearance for three of Campbell's children. The three are disputing the will filed by Kimberly, which specifically excludes the three from any inheritance.

Their prior attorney, Christopher Fowler, withdrew in September.

Probate Court Judge Kennedy also approved the payment of $16,000 to an expert hired to estimate the future value of Campbell's song royalties.

Stay tuned—a hearing on the challenges filed by Smith’s claims has been scheduled for November 21.

Reference: The Tennessean (October 18, 2018) “Glen Campbell estate administrator disputes $1.3 Million in claims filed by widow”